*1 DETERMINED OASES

BY THE AND SPRINGFIELD KANSAS CITY LOUIS, ST. Appeals Courts AT THE ^[*] 1922. META STOLL, Appellant, v. FRANK ADAM ELEC-

TRIC a COMPANY, Corporation, Respondent. Appeals. Opinion April St. Louis Court of Filed Injured: Dangerous 1. MASTER AND SERVANT: Servant and Un- guarded Machinery: Statutes: Mercantile Establishment Included construing Within Term “Other Estahishments.” 1919, requiring belting, shafting, machines, Revised Statutes machinery, gearing manufacturing, and drums all mechanical establishments, and other when so persons employed thereabouts, engaged therein or while ordinary duties, safely securely guarded possible, to be phrase establishments,” “and other in the connection used, application ejusclem generis call does for the rule construing enough and the used is broad include a mercantile establishment where labor is unguarded dangerous machinery is used. Negligence: Contributory Negligence: -: -*: -: Ques- Jury. appears plaintiff, working tion for the Where while place business, a clerk or demonstrator defendant’s required discharge to use a narrow aisle while of her ordi- nary duties, purpose and that while she was the aisle for the demonstrating washing prospective machine to a customer person attempted some other the store her this nar- attempting passageway, permit pass, row REPORTS, APPEAL MISSOURI v. Adam Elec. the machine and manner her toward in some thrust hand fingers caught unguarded electri- rollers of an machine, cally wringer operated attached such *2 contributory negligence injured, plaintiff held not of was a matter of .law.

ON MOTION FOB REHEARING. Ejusdem Applied Construction: Rule 3. STATUTES: Generis: Never Legislative Purpose. so as to Defeat Construed The rule of necessity, yeneris of as an is a rule used aid « of statutes to enable the to arrive at the real court intent, applied legislative unless and should be it is neces- applied legislative sary never construed so as to defeat and purpose. City Appeal of of the Circuit Court St. from Louis.— Judge. Hon. M. Hartmann, and remanded. Reversed appellant. Paeben for

Conrad Counsel. James T. of Roberts (1) (a) On defendant’s demurrer evidence appellate concern of court ascertain what plaintiff shown on behalf what that evidence prove. Laundry 111. Co., tends to Kincaid v. 189 1189; Wrecking 549; 195 Co., Tates v. House S. Willadsen Creamery Valley (b) 214 258. Co., v. Blue S. W. The party demurring testimony the truth admits appeal The court on must which he demurs. allow to a case on demurrer defendant’s benefit of every arising proof. on inference fact reasonable Link Co., v. Railroad 257 Mo. v. A. C. L. Williams belting, (2) shafting, R. R. S. W. machinery, gearing drums all manu- machines, facturing, establishments mechanical placed employed as to be State so engaged therein or thereabouts while guarded pos- safely securely shall v. Adam Elec. Co. S. (3) sible. Sec. R. 6786, 1919, amended 1909. Sec- commonly R. Guarding 6786, 1919, tion S. called “The “Factory being highly Statute” or Act,” remedial and rights enlargement given formerly an under the liberally common must be law, so as to effect- meaning the true intent and uate thereof. Sec. 7048, City S. Bluff App. R. Austin v. Co., 176 Shoe Cole v. Am. North Lead (4) Mo. 247. shop The electric Factory (R. 6786)

covered Act sec. that was a “mechanical or other establishment” with- meaning law. th.e Henderson Heman Const. (5) ques- 198 Mo. S. W. 1045. as to the machine tion dangerous whether was so as to be guarded question and should was a jury fact one of law the court. *3 App. (6) v. 176 Mo. Austin Shoe 573. Co., The court giving peremp- at the close of case erred a tory find for the instruction to defendant because, under presented, question facts here was a the of fact for jury question the and not of for the a law court as to not the machine mentioned whether the evidence plaintiff be so as to was and could guarded interfering prac- without with been its have operation. the trial case, of a if, under tical the presented, might of reasonable men the minds facts question jury. a it then becomes of fact for differ, the App. Mo. Kincaid v. 176 v. Co., Austin Shoe Laun- (7) dry 189 1189. Plaintiff was not Co., S. contributory negligence, getting a of as matter law, question washing machine allow close another presented, aisle. here her in As it is clerk the jury. Laundry question for the Tatum Crescent v. Co., (a) principle 208 W. S. danger running through unless the all the is that cases prudence glaring that no would is so question of do what the done, undertake to was contrib- utory negligence the not one law for court, but Wrecking jury. v. House fact for the Tates one of APPEAL REPORTS, MISSOURI v. Adam Elec. Co. Valley Creamery 549; Willadsen v. Blue 195 S. W. Cooperage App., Miniea v. 214 S. W. 175 Mo. (8) defendant-respondent may 103. anticipated While not have very yet accident that did lia- occur, charged negligence bility with of a defendant not does depend upon question of whether not the defend- ought anticipated very injury to have ant could or complained anything liable but will be held of, he appears injury complete, which, after probable consequence the natural and of his act or v. & Mule Co., omission. Buckner Horse 221 Mo. 719; Deneschocky v. Seibel, S. W. 966, Angert respondent. c£ Eocher, Sullivan

Jones, (1) undisputed facts, Under Re- Guarding known “The Statute,” vised Statutes application to this 1. The no case. defendant has manufacturing engaged in or mechanical business meaning*of It said statute.’ conducted a re- within the shop only where or store manufactured articles tail shop A retail or store is sold. 2. class manufacturing or mechanical with establishments. The generis applies principle phrase “and other establish- construed to mean “and ments” should other such v. State 267 Mo. Wade, 257; Standard establishments.” (2) E. 263. 49 S. Swanson, contributory negligence Oil gnilty as a matter of law. Corp., (Mo. App.) Zinc 227 W. Kilmer v. Connecticut *4 Bread 150 Mo. v. Smith v. 861; Hirsch Nugent 193 Mo. Forrester-Nace Box v. Mill- ing 131 Mo. per- to is an action for C.- This recover

NIPPER, injuries alleged by plaintiff to have been sustained sonal working as a clerk or demonstrator defendant’s while caught by having place her hand between business, operated “wringer” electrically an at- rollers of rubber washing to a machine. tached

MARCH TERM, Elec. Adam gave peremptory instruction The court a for defend- plaintiff’s an at took case, ant the close involuntary nonsuit with leave to move to set the same plaintiff per- Upon overriding of said motion aside. appeal her to this court. fected occurred, on the 12th of December, 1918, The accident upon action is based section Stat- and this Revised Revised Statutes 1919. utes now conducted a store on defendant Pine street, city Louis. In this store were the usual fixtures St. Arranged to be found one of this kind. on the floor washing rows of electric stoves and electric ma- arranged machines were chines. These so to create a enough through. narrow aisle wide a walk was as a saleswoman, Plaintiff and worked designated which was store, defendant as an elec- shop. plaintiff’s duty anything It to sell tric that customers wanted. She had for de- store worked prior months about three accident. fendant When plaintiff’s duty come a customer would washing machines with these their various demonstrate which The machine caused in- attachments. washing jury as a Thor machine. There a known is machine which to the turns on the elec- attached button conveyed power power. to the This machine tric plugged in which is an electric cord at a socket means of a There is lever which is near the desk. used to located wringer stop rollers of the attached to the start and plugged in on the socket located the floor, She machine. trying one was some she arose and as washing close to this stood machine. as she aisle narrow guarded. caught her hand were rollers happened, question how stated: answer position standing up got some one was a I “As my body turning standing I past at going me, my hand machine, Thor was drawn machine, running, which was machine, rollers of this in between just ’’ through. my hand take appears machine that she did start the after It apparently it had been left in but plugging cord, *5 213 MISSOURI APPEAL REPORTS, v. Adam Elec. Stoll position as cord was attached. The to start soon as the wringer height slightly at a rollers were located plaintiff. above machines were not the waist-line of The merely manufactured but were sold establishment, there a retail store. The evidence also as discloses possible guard rollers this machine, guarded that similar machines were in laundries. from the who Aside doctor testified as injuries, only in this case. three witnesses testified

I. plain undisputed. questions are The facts presented by appeal of law are: or not de- whether engaged in fendant was such business as comes within provisions of the section of our statute above referred to; tory negligence whether or not of contribu- and, a matter law.

II. upon this action is based, The statute time of the as follows: accident, existed at the reads belting, shafting, machinery, gearing machines, “The manufacturing, in all mechanical and other drums, in this when so State, as to be dan- establishments gerous therein or thereabout while safely engaged shall be possible,” securely guarded etc. by appellate has our statute been

This although questions of times, the exact a number courts passed directly have not been heretofore presented here upon any of this of the courts far State, so as we have to ascertain. able Supreme North Court, Cole v. American Our Lead stated that this was “one of the statute wisest most of our humane upon our statute books, to be found and should statutes interpretation, given broad and liberal because it Legislature highly salutary, . . . remedial and y. Adam Elec. Co. *6 knew that the human mind and conduct was such that performance a servant when in the of his duties his by dangerous machinery, surrounded master, in mo- upon with his tion, mind concentrated his work, oblivious surroundings, slip misstep to his is liable to or take a revolving machinery, thoughtlessly into the fall or portion gear- body thrust his hand or other of his ing portion machinery. or other of the ... It was Legislature, object pur- the intention of the and the pose put stop injuries of the statute to to all such which grow mishaps out such inattention, or inadvertence, such acts accidents, is, of omission.” Wrecking (Mo. App.), In v. House Yates Co. 395 S. l. c. it 549,W. is said: 551, question, primarily, particular

“The not at is what place machinery but rather located, is, where it is located with reference servant’s duties. performance go If, of such he must or dangerous proximity machinery, in reach to the it should ” ‘securely guarded possible.’ be App. In Austin v. Mo. 546, Shoe 176 158 S. W. by highly it was this court that 709, held statute is this although changes law, remedial, and the common liberally safety is to be favor of the in employees employed may and limbs of who lives about very machinery, and that the pur- evidence statute unmistakable broad affords poses providing legislators by our in held in view for employees engaged safety of in and about the factories workships State. In this this see connection, al- App. Heman 198 Henderson v. Construction Mo. so, Valley Creamery v. Blue 199 W. 423, Willadsen 18 R. L. S. W. C. phrase, Defendant that the “and other contends es- in the connection it is tablishments,” used, was intended general places to embrace of the same calling character as those application enumerated, thus of the rule ejusdem generis. by of what has said view APPEAL REPORTS, MISSOURI Adam Elec. Stoll v. construing this and the State courts Legislature object, purposes, its intent of justified placing not be enactment, we would nar- upon it. and constrained Section row immediately precedes the Revised Statutes which pro- question, part article, one in and is a of the same manufacturing, “All that, vides accidents mechanical, places or mercantile within or establishments prevent the in- State labor which where jured person returning work or from within injury, two weeks after the result death, reported charge of such shall be estab- factory inspector,” place etc. lishment *7 and section, In that in addition to mechanical manu- facturing mercantile establishments are establishments, specifically which must as establishments deal mentioned inspector respect factory with the happenings with events or see no oc- enumerated section. "We applying the of here rule casion reason for generis meaning broad to the which restrict natural applied phrase, “and other the establish- would be to the for whose benefit law was ments,” the commonplace affairs would be which, enacted, and legislators applied intended a dif- words. our the If easy meaning, for them it ferent would have said so. the 152 Wis. Su- Milwaukee,

In Kosidowski v. preme circumstances similar under Wisconsin, of Court addressing point, to this itself us, those which confront language: following use of made subsidiary rules “Any resort defeating meaning the will result restrict would giving power lawmaking full effect instead of the duty, judicial and should be, The latter is a thereto. ’’ pleasure. it is, Interborough Caddy T.R. N. Y. And in it is said: MARCH TERM, v. Adam Elec. lexicographers’ “In cases like this, definitions are they guide-posts, but do take us to useful our statutory phrase meaning destination. a word or gathered purpose from must be law containing it enacted.” not contended that

It is this was not a “machine” meaning question. statute think within We Legislature, by enactment of this intended ££ protection employees the same in other to afford es ” engaged ordinary while tablishments, duties, required unguarded them to work near if such duties machinery, employees manufacturing as it did to legislators, and that our establishments, mechanical phrase, use of the “and meant establishments,” they just they if had intended otherwise said, what easily they have said so. This could broad enough mercantile establishment to include a where unguarded machin labor ery is used.

III. contributory negligence, the defense As required appears to use this nar discharge aisle while row purpose the aisle for the while that, *8 demonstrating prospective machine to this customer, attempted person in store other the to some passageway. attempting permit in this narrow to pass, plaintiff to some manner this thrust fingers caught machine and her toward this her hand injuries thereof and received the in the rollers by question; as are and under such facts disclosed holding not be we would warranted record, contributory negligence as a matter of law. — App al., , Marshall et v. [Tomlinson .— It that the court follows, therefore, erred in 680.] sustaining to motion set aside the invol- REPORTS, APPEAL 213 MISSOURI Adam Elec. Co. untary nonsuit. the Commissioner Therefore, recom- judgment be and the cause mends that the reversed remanded. foregoing opinion PER CURIAM: The Nipper, adopted opinion judgment is as the of the court. The

C., accordingly of the circuit court is reversed and the cause Allen, J., Daues, remanded. P. Becker and concur. JJ., por Rehearing. piled Opinion April On 28,1922. Motion respondent, C. Learned counsel Nipper, rehearing, opinion motion for insist that the in con- is opinions Supreme with flict certain the be- Court, apply ejusdem generis cause of our failure the rule of construing general the words of the statute “and other establishments.” This rule is a rule of neces- sity, as an aid in the used construction of statutes, legislative us to arrive at the real intent. It enable should applied necessary, applied unless is never is purpose. par- so as defeat that If the “manufacturing” ticular words and “mechanical” ex- nothing genus, ejusdem generis the haust there left,' give general meaning we the and must words a outside particular of the class say indicated words, or they meaning, have no that which case the rule would purpose. “manufacturing” defeat its own The words apply “mechanical” class, exhaust-their generis say rule of here we would have to that other “and establishments” had no mean- practically ing, apply and was useless. To rule say Legislature case would we did not require machinery guarding any intend place manufacturing than mechanical establish- specific general because words exhaust the ments, they belong. If class which intention of Legislature, the use words “and other estab- meaningless. applied rule lishments” is never [See circumstances. National Bank under such of Com- *9 y. Adam Elec. Co. Ripley, merce 587.] v. appears If this ruling the.Legis- then unreasonable, harsh responsible. lature and not tbe are courts that the motion Commissioner recommends rehearing be overruled. foregoing opinion

PER CURIAM: The of Nipper, adopted opinion Respondent’s C., court. rehearing accordingly motion for overruled. Allen, P. J., JJ., Becker concur. Danes,